Clinton IT aide to plead the Fifth in email case

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43. No, the Fifth can be used if there is apprehension

About prosecution even if the witness has not committed a crime.

The Supreme Court has held that "a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."
https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution#Self-incrimination

The case referenced in this Wikipedia article is this one:

Ohio v. Reiner
532 U.S. 17 (2001)

OCTOBER TERM, 2000

Syllabus

OHIO v. REINER

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO

No. 00-1028. Decided March 19, 2001

Respondent was tried for involuntary manslaughter in the death of his infant son Alex, who died from "shaken baby syndrome." His defense theory was that Alex was injured while in the care of the family's babysitter, Susan Batt. Batt informed the Ohio trial court before testifying that she intended to assert her Fifth Amendment privilege, and the court granted her transactional immunity. She then testified to the jury that she had refused to testify without a grant of immunity on the advice of counsel, although she had done nothing wrong. The jury convicted respondent, and he appealed. The appeals court reversed, and the State Supreme Court affirmed the reversal on the ground that Batt had no valid Fifth Amendment privilege because she asserted innocence and that the trial court's grant of immunity was therefore unlawful. The court found that the wrongful grant of immunity prejudiced respondent, because it effectively told the jury that Batt did not cause Alex's injuries.

Held: Batt had a valid Fifth Amendment privilege against selfincrimination. This Court has jurisdiction over the Ohio Supreme Court's judgment, which rests, as a threshold matter, on a determination of federal law. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 816. The Fifth Amendment privilege's protection extends only to witnesses who have a reasonable cause to apprehend danger from a direct answer. Hoffman v. United States, 341 U. S. 479, 486. That inquiry is for the court; the witness' assertion does not by itself establish the risk of incrimination. This Court has never held, however, that the privilege is unavailable to those who claim innocence. To the contrary, the Court has emphasized that one of the Fifth Amendment's basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances. Grunewald v. United States, 353 U. S. 391, 421. Batt had "reasonable cause" to apprehend danger from her answers if questioned at respondent's trial. Thus, it was reasonable for her to fear that answers to possible questions might tend to incriminate her.

Certiorari granted; 89 Ohio St. 3d 342, 731 N. E. 2d 662, reversed and remanded.

https://supreme.justia.com/cases/federal/us/532/17/

Think of the people who were persecuted by Joe McCarthy who attempted to protect themselves by pleading the Fifth. People's lives were destroyed when they had never broken the law.

In today's Congress and in the country today irrational attempts at prosecution even if a person is completely free of wrong doing is a very real possibility.

The assumption of guilt when a a refusal to answer and use of the Fifth Amendment is inherently a denial of a right under our Constitution and a denial of a human right.